UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FILED
United States Court of
Appeals
Tenth Circuit

June 25, 2015

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellant,
v.
ULISES ARGUETA-MEJIA,

No. 14-1244
(D.C. No. 1:13-CR-00379-WJM-1)
(D. Colorado)

Defendant - Appellee.
ORDER AND JUDGMENT *
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.

This appeal concerns application of the exclusionary rule to evidence

flowing from a traffic stop. The stop was made when Officer Martin
Tritschler allegedly saw Mr. Ulises Argueta-Mejia turn left without
signaling. During the stop, the officer learned that Mr. Argueta-Mejia was
an alien who had previously been removed to another country. With this
information, the officer arrested Mr. Argueta-Mejia. After the arrest, an
immigration agent fingerprinted Mr. Argueta-Mejia and used those
fingerprints to obtain his immigration record. With the benefit of the
*

This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But, the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).

immigration record, authorities charged Mr. Argueta-Mejia with illegal

reentry into the United States. See 8 U.S.C. 1326(a) (2012).
Claiming the arrest was unlawful, Mr. Argueta-Mejia successfully
moved to suppress evidence of post-arrest statements and identifying
information. The government appeals, and we must address two issues:

I.

1.

Obviousness of Probable Cause. The first issue involves the

obviousness of probable cause on a charge of illegal reentry
into the United States. The defendant insists this argument was
waived, and the government urges application of the plain-error
standard. For the sake of argument, we can assume that the
plain-error standard applies, as the government urges. Under
this standard, we ask: Did the district court commit an obvious
error by overlooking the existence of probable cause for illegal
reentry into the United States? We conclude that if the district
court erred, the error would not have been obvious because (a)
there was no evidence regarding one element of illegal reentry
(the absence of permission to lawfully reenter the country) and
(b) we lack precedent on the existence of probable cause in
these circumstances.

2.

Application of the Exclusionary Rule. When a defendant is

illegally seized, a court must suppress evidence resulting from
that seizure (the fruit of the poisonous tree). To avoid
suppression, the government had to show that the fingerprints
were taken solely because of routine booking procedures;
suppression was necessary if the fingerprints had been taken at
least in part to aid the governments investigation. Thus, we
ask: Did the government show that Mr. Argueta-Mejias
fingerprints were taken solely because of a routine booking
procedure? We conclude that the government did not satisfy its
burden of proof.

The Suppression of Evidence and the Appeal

In district court, Mr. Argueta-Mejia moved to suppress all evidence

of post-arrest statements and identifying information (including the

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fingerprints and immigration record). Appellants App. at 814, 2935. In

this motion, Mr. Argueta-Mejia alleged violation of the Fourth Amendment
on the ground that Officer Tritschler lacked a legal basis for the traffic
stop and arrest. Id. at 10, 7781.
Before starting the hearing on the motion to suppress, the court
conducted a status conference. There the government identified two issues,
one of which was whether the police officer could make an arrest on a
federal charge. Id. at 120. 1 Defense counsel identified three issues from his
perspective. The second of these issues involved probable cause 2:
The second is, assuming that the initial stop was lawful,
that there was a turn signal violation that justified the stop,
then the continued detention in this case was based upon a note
in the NCIC that says that Mr. Argueta-Mejia has
immigrationI cant remember exactly, but something along
the lines of: Previously deported alien. Contact us.
So the question then becomesI am phrasing it maybe a
little bit differently, but, one, yes, can a state officer arrest
somebody based upon an NCIC note that hes previously
deported. And even if a state officer could arrest on a sole
federal offense, did he have probable cause at that point to
believe that some federal offense was being committed?
Obviously just because you are previously deported in the past
doesnt necessarily mean that you are not lawfully present now.

The other issue was the validity of the stop. Appellants App. at 120.

The other two issues involved the validity of the stop and the
applicability of the exclusionary rule. Appellants App. at 120-21.
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Id. at 121. 3
Because the government lacked a warrant, the district court correctly
placed the burden on the government to demonstrate that Officer Tritschler
had acted lawfully. Id. at 92; see United States v. Maestas, 2 F.3d 1485,
1491 (10th Cir. 1993). Attempting to meet this burden, the government
argued that the arrest was lawful under federal immigration statutes
because Officer Tritschler had acted in cooperation with federal
immigration officials and had complied with the statutory procedures.
Appellants App. at 4044; see 8 U.S.C. 1357(g)(10) (2012). But the
government never challenged Mr. Argueta-Mejias argument about the
absence of probable cause.
The district court declined to address the issue of probable cause.
Instead, the court granted the motion to suppress based on Officer
Tritschlers failure to comply with the statutory procedures governing
immigration officials.

The defendants written motion to suppress did not expressly refer to

the absence of probable case. But the government did not object to defense
counsels identification of the probable cause issue, and the Federal Rules
of Criminal Procedure would have allowed defense counsel to orally
supplement the motion to suppress at the status conference. See United
States v. Gonzales-Rodriguez, 621 F.3d 354, 368 (5th Cir. 2010) (The
Federal Rules of Criminal Procedure permit oral . . . pretrial motions.);
United States v. Perez, 603 F.3d 44, 49 (D.C. Cir. 2010) ([T]he [Federal
Rules of Criminal Procedure] treat oral and written motions the same.);
see also United States v. Navarro Viayra, 365 F.3d 790, 792 (9th Cir.
2004) (stating that Fed. R. Crim. P. 47 clearly allows oral motions even
outside the context of a trial or hearing).
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On appeal, the government contends the arrest was constitutional

because Officer Tritschler had probable cause to believe Mr. ArguetaMejia was committing the crime of illegal reentry.
II.

Probable Cause: The Absence of an Obvious Error

The defendant argues that the government waived its present

argument on probable cause; the government insists on the plain-error

standard of review. For the sake of argument, we can assume that the issue
was not waived. Even if the government did not waive the argument,
however, we would decline to find plain error. 4

In United States v. Martinez, 643 F.3d 1292, 1293 (10th Cir. 2011),
the government appealed a district courts suppression order arising from
law enforcements unlawful entry. On appeal, the government made a new
argument to justify law enforcements entry into the defendants home.
Martinez, 643 F.3d at 1298. We declined to entertain the governments new
argument, stating: We will not consider a suppression argument raised for
the first time on appeal absent a showing of good cause for why it was not
raised before the trial court. Id.
Mr. Argueta-Mejia relies on Martinez, arguing that the government
waived its present argument on probable cause. The government contends
that Martinez simply assumed the existence of a waiver. But the
government acknowledged in oral argument that the so-called assumption
in Martinez was not really academic because it had consequences to
the decision. Oral Arg. at 2:18-2:51. We need not assess the governments
parsing of Martinez or decide whether the government waived its newly
asserted argument on probable cause. Even if we were to apply the plainerror standard (as the government urges) rather than deem the
governments new argument waived (as the defendant urges), the existence
of probable cause would not have been sufficiently obvious to merit
reversal.
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A.

The Necessity of an Obvious Error

For plain error, the error must be clear and obvious under current
law. United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003)
(quoting United States v. Fabiano, 169 F.3d 1299, 130203 (10th Cir.
1999)). If the district court had erred, the error would not have been clear
or obvious.
B.

The Absence of an Obvious Error

The district court concluded that (1) Officer Tritschler had failed to
comply with 8 U.S.C. 1357(g) (2012) and (2) the government had not met
its burden to demonstrate another lawful reason for the arrest. Appellants
App. at 10607. In challenging the first conclusion, the government
contends that Officer Tritschler did not need to comply with 1357(g)
because it applies only when state officers are performing immigration
officer functions. 8 U.S.C. 1357(g) (2012).
We agree. The federal constitution allows a state law enforcement
officer to make an arrest for any crime, including federal immigration
offenses. See United States v. Santana-Garcia, 264 F.3d 1188, 119394
(10th Cir. 2001) (in the absence of contrary state or local laws, state law
enforcement officers can make arrests for violation of federal immigration
laws). As a result, we must decide whether probable cause would have been
obvious for an arrest on federal charges.

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Probable cause exists when the officer has reasonably trustworthy

information that would warrant a prudent persons belief that the defendant
was committing a criminal offense. United States v. Rodriguez, 739 F.3d
481, 485 n.2 (10th Cir. 2013). The parties disagree about the application of
this standard to the crime of illegal reentry (8 U.S.C. 1326(a)).
This crime is committed when

an alien,

previously removed from the United States,

is later found in the United States

without permission to reenter.

8 U.S.C. 1326(a) (2012).

We need not decide whether Officer Tritschler had probable cause.
See p. 10 n.9, below. Even if he did, the district courts error would have
constituted plain error only if the existence of probable cause had been
obvious. Probable cause would not have been obvious because

there was no evidence on the fourth element of illegal reentry

and

we have no precedents addressing the existence of probable

cause when evidence exists on some but not all of the elements
of an offense.

Officer Tritschler had only a report

stating that Mr. Argueta-Mejia was a felon who had previously

been deported and

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containing an unexplained notation of FUG. 5

Appellants App. at 237. A reasonable jurist could conclude that this

information did not address whether Mr. Argueta-Mejia had permission to
reenter the country.
The governments insistence on probable cause is undermined by its
own representations to the district court. Commenting on the routine
procedure after discovery that Mr. Argueta-Mejia was a deported felon, the
government stated to the district court:
As I understand the process, ICE is contacted, and they pull up
information on the individual that theyre contacted about.
Based on that information, database checks, I believe they
determine whether or not the individual is an alien, confirm the
removal and determine whether or not that individual has
sought or received permission to come back to the United
States.
If all of that information comes back, I guess affirmative,
whether or not the individual is an alien or whether or not he
has been previously removed from the United States, and in the
negative, whether hes received permission to return, then I
believe that individual has probable cause that the violation of
Title 8, United States Code, Section 1326(a) has been violated.
Id. at 13334.
From this statement, the district court could have understood the
government to be acknowledging the absence of probable cause until
immigration officials learned whether the alien had obtained permission to
reenter. Officer Tritschler did not receive this information until after the
5

Officer Tritschler acknowledged that the computer entry had not

shown a warrant for Mr. Argueta-Mejia. Appellants App. at 176.
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arrest. Therefore, the governments representation to the district court

would have clouded any finding that Officer Tritschler had probable cause
at the time of the arrest.
The government argues that one can infer the absence of permission
to reenter based on the fact of a previous deportation. 6 That inference is
possible, but reasonable jurists could also draw the opposite inference; the
problem is that we lack any precedential decisions on probable cause
without evidence addressing permission to reenter the country. 7
Even more generally, we lack precedential decisions on the necessity
of probable cause for each element of a suspected crime. On that issue, the

In oral argument, the government argued for the first time that
permission to reenter is not that easy to come by. Oral Arg. at 7:01-7:33.
We reject this argument for two reasons. First, the argument is waived
because it was raised for the first time in oral argument. See United States
v. Burns, 775 F.3d 1221, 1223 n.2 (10th Cir. 2014). Second, the
government has not presented any evidence, either in district court or on
appeal, about the difficulties in obtaining permission to reenter or the
frequency in which permission is given. In the absence of such evidence,
neither our court nor the Supreme Court has ever held that a judge can rely
on the infrequency of permission for reentry into the United States. Thus,
we cannot base plain error on the governments statement in oral argument
that permission to reenter is not that easy to come by.
7

The government relies on a report (an NCIC alert), but has not
cited any cases regarding the effect of an NCIC alert. Instead, the
government relies on Virginia v. Moore, 553 U.S. 164 (2008). There the
Supreme Court considered whether evidence from an arrest supported by
probable cause is admissible when the arrest violated state law. Moore, 553
U.S. at 175-78. But we must determine whether the existence of probable
cause was obvious, not whether an arrest supported by probable cause
would have been lawful. Moore does not bear on the obviousness of
probable cause from the NCIC alert.
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circuits are divided. Compare Spiegel v. Cortese, 196 F.3d 717, 724 n.1
(7th Cir. 2000) (stating that probable cause is unnecessary on each element
of a crime), and Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir.
1994) ([A]n officer need not have probable cause for every element of the
offense.), with Williams v. Alexander, Ark., 772 F.3d 1307, 1312 (8th Cir.
2014) (For probable cause to exist, there must be probable cause for all
elements of the crime.), and United States v. Joseph, 730 F.3d 336, 342
(3d Cir. 2013) (To make an arrest based on probable cause, the arresting
officer must have probable cause for each element of the offense.).
Neither our court nor the Supreme Court has weighed in on this circuit
split. 8
Without precedent on the issue, we conclude that the district court
did not commit a clear or obvious error in failing to find probable cause
without at least some evidence on Mr. Argueta-Mejias permission to
reenter the United States after his prior removal. 9

The Supreme Court has held that [p]robable cause does not require
the same type of specific evidence of each element of the offense as would
be needed to support a conviction. Adams v. Williams, 407 U.S. 143, 149
(1972). But the Court has not decided whether probable cause can exist
without at least some evidence on every element of a suspected crime.

We do not suggest how the district court should have ruled on the
issue of probable cause. That issue is not before us. We hold only that
under the plain-error standard, which the government asks us to apply, the
existence of probable cause was not sufficiently clear and obvious to
require reversal.
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III.

Application of the Exclusionary Rule

In light of the arrest without probable cause, the district court

correctly excluded the resulting evidence.

A.

Standard of Review

When a defendant is illegally seized, a court must suppress evidence

derived from that seizure that is the improper fruit of the poisonous tree.
See Wong Sun v. United States, 371 U.S. 471, 48588 (1963). To justify
suppression under this doctrine, the defendant must show a factual nexus
between the illegal seizure and the challenged evidence. United States v.
Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000). Once this nexus is
shown, the government can avoid suppression only by proving that the
evidence was so attenuated from the illegality as to dissipate the taint of
the unlawful conduct. Id.
On review, we accept the district courts factual findings unless they
are clearly erroneous. Id.
B.

The Suppressed Evidence

The government contends that even if probable cause was absent, the
district court erred in suppressing the fingerprints and immigration record
because their discovery was attenuated from the illegal arrest. We reject
this contention.
The issue is whether the illegal arrest [was] in part for the purpose
of obtaining unauthorized fingerprints so Defendant could be connected to
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additional illegal activity. United States v. Olivares-Rangel, 458 F.3d

1104, 1116 (10th Cir. 2006) (emphasis added). In United States v.
Olivares-Rangel, we distinguished between fingerprints obtained to aid an
investigation after an illegal arrest (which generally are suppressed) and
fingerprints that are obtained merely as part of a routine booking procedure
(which generally are not suppressed). Id. at 111214.
Fingerprinting is

investigatory if the purpose of obtaining Defendants

fingerprints [is] to link him to criminal activity and

part of the routine booking procedure if the officer seeks to

confirm that the person who has been arrested is in fact the
person law enforcement agents believe they have in custody.

Id. at 1113, 1116.

The district court found four facts bearing on application of the
exclusionary rule:
1.

Mr. Argueta-Mejia was arrested because he was a previously

deported felon.

2.

Officials of the Immigrations and Customs Enforcement Office

conducted the booking process, and the agencys entire
purpose is to enforce immigration laws.

3.

The purpose of the booking process was to obtain Mr. ArguetaMejias fingerprints to identify him as a previously deported
felon.

4.

The fingerprints were obtained to further the investigation of

the immigration offense, and the unlawful arrest was exploited
for the purpose of obtaining the fingerprints.

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Appellants App. at 110. From these facts, the district court concluded the
government had failed to show the absence of an investigatory motive. Id.
We agree with the district court. The government bore the burden of
proving that the evidence was attenuated from the unlawful arrest (see
p. 11, above), and the crime hinged on identity and proof that the Attorney
General had not granted permission to reenter the country. See United
States v. Pena-Montes, 589 F.3d 1048, 1058 (10th Cir. 2009) (stating that
the critical evidence necessary to convict the defendant of illegal reentry
was identity itself: [the defendants] fingerprints and related records);
see also United States v. Garcia-Beltran, 389 F.3d 864, 868 (9th Cir. 2004)
([I]n the investigation of immigration offenses, establishing the identity
of the suspect is an essential component of such an investigation.). For
these aspects of its burden of proof, the government needed Mr. ArguetaMejias immigration record. And there is no evidence of the governments
ability to retrieve the immigration record without Mr. Argueta-Mejias
fingerprints. In these circumstances, we conclude that the government
failed to prove that the evidence had been attenuated from the illegal
arrest.
The government acknowledges that the district court made three
correct factual findings:
1.

Mr. Argueta-Mejia was arrested because he was a previously

deported felon.
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2.

The Immigrations and Customs Enforcement Office conducted

the booking process.

3.

The purpose of the booking process was to obtain Mr. ArguetaMejias fingerprints to identify him as a previously deported
felon.

But the government argues the district court wrongly interpreted the
significance of these findings, claiming that

the purpose of the arrest was not to obtain fingerprints,

the fingerprints were taken as part of a routine booking

procedure, and

the purpose of fingerprinting Mr. Argueta-Mejia was to

verify his identity rather than to obtain additional information.

We reject these arguments. The district courts inferences from these

factual findings are subject to clear error review (see p. 11, above), and we
have no reason to regard these inferences as clearly erroneous.
The government also argues that

the district court misapplied an Eighth Circuit case (United

States v. Guevara-Martinez, 262 F.3d 751 (8th Cir. 2001)), and

exclusion of evidence is unwarranted here in light of the

policies surrounding the exclusionary rule.

These arguments are unpersuasive.

First, we cannot reverse based on the district courts reliance on the
Eighth Circuits opinion in Guevara-Martinez. There the appellate court
held that an investigatory motive may be inferred when a defendant is
fingerprinted after an interview with immigration officials. GuevaraMartinez, 262 F.3d at 756. That holding arguably applied here because the
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district court found that the fingerprinting of Mr. Argueta-Mejia was

motivated at least in part to aid an investigation. Though the Eighth Circuit
decision was not precedential in our circuit, it might have been considered
persuasive. Regardless of its persuasive value, however, the district court
made a factual finding that the government had taken the fingerprints at
least in part to aid the investigation. See pp. 12-13, above. Whatever we
think of the Eighth Circuits opinion, the district courts factual finding
binds us under the clear-error standard.
Finally, we reject the governments policy argument. The policy
ramifications of the exclusionary rule can be debated. See, e.g., Donald
Dripps, The Case for the Contingent Exclusionary Rule, 38 Am. Crim. L.
Rev. 1, 5-22 (2001) (discussing the policy arguments for and against the
exclusionary rule). But our decision is guided by precedent, not policy
considerations. The district courts finding of an investigatory motive
compels exclusion under our precedent in Olivares-Rangel.
IV.

Conclusion
We affirm the district courts order suppressing the evidence of post-

arrest statements and identifying information. Even if the government did

not waive the argument on probable cause, we would decline to find a clear
or obvious error.
Without the obvious existence of probable cause, the district court
had to exclude the evidence if law enforcement officers took the
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fingerprints at least in part to aid an investigation into illegal reentry. The

district court found such a motive, and we must uphold this finding under
the clear-error standard.
Accordingly, we affirm.
Entered for the Court

Robert E. Bacharach
Circuit Judge

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